THIS FIRST AMENDMENT to Loan and Security Agreement (this “Amendment”) is entered into as of March 26th, 2014 by and between SILICON VALLEY BANK (“Bank”) and GOOD
TECHNOLOGY CORPORATION (f/ k/a Visto Corporation), a Delaware corporation (“Holdings”), GOOD TECHNOLOGY SOFTWARE, INC. (f/k/a Good Technology, Inc.) a Delaware corporation (“Good Technology” and, together with Holdings, each an
“Existing Borrower” and collectively, the “Existing Borrowers”) and BOXTONE, INC., a Delaware corporation (“New Borrower” and together with the Existing Borrowers, “Borrowers”).
A. Bank and Existing Borrowers have entered into that certain Loan and Security Agreement dated as of December 31, 2013, (as
the same may from time to time be amended, modified, supplemented or restated, the “Loan Agreement”).
Bank has extended credit to Existing Borrowers for the purposes permitted in the Loan Agreement.
C. Existing Borrowers
have requested that Bank amend the Loan Agreement to (i) waive the late completion of certain post-closing items, (ii) consent to the Boxtone Acquisition (as defined below) and (iii) make certain other revisions to the Loan Agreement
as more fully set forth herein.
D. Bank has agreed to so amend certain provisions of the Loan Agreement, but only to
the extent, in accordance with the terms, subject to the conditions and in reliance upon the representations and warranties set forth below.
NOW, THEREFORE, in consideration of the foregoing
recitals and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:
1. Definitions. Capitalized terms used but not defined in this Amendment shall have the meanings given to them in the Loan
2. Amendments to Loan Agreement.
2.1 From and after the Boxtone Acquisition Closing, New Borrower hereby absolutely and unconditionally: (i) joins as and
becomes a party to the Loan Agreement as a Borrower thereunder, (ii) assumes all of the obligations, liabilities and indemnities of a Borrower under the Loan Agreement and all other Loan Documents, and (iii) covenants and agrees to be
bound by and adhere to all of the terms, covenants, waivers, releases, agreements and conditions of or respecting the Borrowers with respect to the Loan Agreement and the other Loan Documents and
all of the representations and warranties contained in the Loan Agreement and the other Loan Documents with respect to New Borrower; and (iv) collaterally assigns and transfers to Bank, and
hereby grants to Bank, a continuing security interest in all of such New Borrower’s now owned and existing and hereafter acquired and arising Collateral (as set forth on Exhibit A attached to the Loan Agreement), as collateral security for
the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of all of the Obligations. New Borrower hereby authorizes the Bank to file at any time uniform commercial code financing
statements in such jurisdictions and offices as the Bank deems necessary in connection with the perfection of a security interest in all of such New Borrower’s now owned or hereafter arising or acquired Collateral. New Borrower has read the
Loan Agreement and affirmatively grants to Bank all rights to New Borrower’s Collateral as set forth in said Loan Agreement and the Loan Documents.
2.1 Section 2.1 (Term Loans). Section 2.1.1(b) of the Loan Agreement hereby is amended and restated in its entirety and replaced with the following:
“(b) Repayment. The Term Loans shall be “interest-only” following the Funding Date of each Term Loan with interest
payable on the last day of each month in accordance with Section 2.3(d) hereof. The principal amount of the Term Loans together with any accrued and unpaid interest thereon shall be due and payable on the Term Loan Maturity Date. Once repaid,
the Term Loans may not be reborrowed.”
2.2 Section 2.3 (Payment of Interest on Credit Extensions).
Section 2.3(d) of the Loan Agreement hereby is amended and restated in its entirety and replaced with the following:
“(d) Payment; Interest Computation. Interest is payable monthly on the last calendar day of each month and shall be computed
on the basis of a three hundred sixty (360) day year for the actual number of days elapsed. In computing interest, (i) all payments received after 12:00 p.m. Pacific time on any day shall be deemed received at the opening of business on
the next Business Day, and (ii) the date of the making of any Credit Extension shall be included and the date of payment shall be excluded; provided, however, that if any Credit Extension is repaid on the same day on which it is made, such day
shall be included in computing interest on such Credit Extension.”
2.3 Section 3.3 (Post-Closing
Conditions). Bank and the Existing Borrowers agree that all items set forth in Subsections (a) and (b) of Section 3.3 of the Loan Agreement have been delivered by Borrower to Bank. Bank waives any Event of Default that may have
arisen by reason of any delivery thereof after the time period set forth therein.
2.4 Section 13 (Definitions).
The following defined terms and their respective definitions set forth in Section 13 of the Loan Agreement hereby are added or amended and restated in their entirety, as appropriate, to read in their entirety as follows:
“Billings” means Revenue as defined under GAAP plus any change in Deferred Revenue (adding any increase or subtracting
any decrease); provided, however, billings hereunder shall be calculated without giving effect to the Boxtone Acquisition.
“Boxtone Acquisition” means the transactions effectuated by the Boxtone
“Boxtone Acquisition Closing” means the closing of the transactions contemplated by
the Boxtone Merger Agreement.
“Boxtone Merger Agreement” means that certain Agreement and Plan of
Reorganization by and among Good Technology Corporation, Nova Acquisition Corporation, Boxtone, Inc. and Lazard Technology Partners II, LP as Stockholder Representative dated as of February 22, 2014, and the schedules and exhibits thereto.
“Boxtone Acquisition Documents” means, collectively, the Boxtone Merger Agreement and any other documents,
instruments and/or agreements necessary to, and executed in connection with, the Boxtone Merger Agreement; all in form and substance reasonably acceptable to Bank.
2.5 Bank hereby consents to the Boxtone Acquisition and provided that such consent shall be deemed to be effective immediately prior to the closing of the Boxtone Acquisition.
3. Limitation of Amendments.
3.1 The amendments set forth in Section 2, above, are effective for the purposes set forth herein and shall be limited precisely as written and shall not be deemed to (a) be a consent to
any amendment, waiver or modification of any other term or condition of any Loan Document, or (b) otherwise prejudice any right or remedy which Bank may now have or may have in the future under or in connection with any Loan Document.
3.2 This Amendment shall be construed in connection with and as part of the Loan Documents and all terms, conditions,
representations, warranties, covenants and agreements set forth in the Loan Documents, except as herein amended, are hereby ratified and confirmed and shall remain in full force and effect.
4. Representations and Warranties. To induce Bank to enter into this Amendment, each Borrower hereby represents and warrants to
Bank as follows (such representations being made by New Borrower immediately after the Boxtone Acquisition Closing):
4.1 Immediately after giving effect to this Amendment (a) the representations and warranties contained in the Loan Documents
are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (b) no Event of
Default has occurred and is continuing;
4.2 Borrower has the power and authority to execute and deliver this Amendment
and to perform its obligations under the Loan Agreement, as amended by this Amendment;
4.3 The organizational
documents of Borrower delivered to Bank on the Effective Date (or upon the Boxtone Acquisition Closing (as applicable) remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force
4.4 The execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized;
execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, do not and will not contravene (a) any law or regulation binding on or affecting
Borrower, (b) any contractual restriction with a Person binding on Borrower, (c) any order, judgment or decree of any court or other governmental or public body or authority, or subdivision thereof, binding on Borrower, or (d) the
organizational documents of Borrower;
4.6 The execution and delivery by Borrower of this Amendment and the performance
by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental
or public body or authority, or subdivision thereof, binding on either Borrower, except as already has been obtained or made; and
4.7 This Amendment has been duly executed and delivered by Borrower and is the binding obligation of Borrower, enforceable against Borrower in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights.
5. Counterparts. This Amendment may be executed in any number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
6. Effectiveness and Covenant to Deliver. This Amendment shall be
deemed effective upon the due execution and delivery hereof by Bank and the Existing Borrowers. Immediately after the Boxtone Acquisition Closing, the Existing Borrowers will cause the New Borrower to deliver (i) a Perfection Certificate for
New Borrower together with the final, executed Boxtone Merger Agreement, (ii) a signature page to this Amendment and (iii) a Certificate of the Secretary of New Borrower with respect to incumbency and resolutions authorizing the execution
and delivery of this Amendment. Within fifteen (15) days of the Boxtone Acquisition Closing, Bank shall complete UCC, Intellectual Property and good standing searches (the “Diligence Searches”) on New Borrower, and any reasonably
material issues discovered as a result of the Diligence Searches will be discussed by Existing Borrowers and Bank and resolved by mutual agreement of Existing Borrowers and Bank. The Existing Borrowers will pay all reasonable Bank Expenses incurred
through the date of this Amendment, which may be debited from any of Borrowers’ accounts.
[Balance of Page Intentionally
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
delivered as of the date first written above.
I hereby certify as follows, as of the date set forth above:
1. I am the Secretary, Assistant Secretary or other officer of Borrower. My title is as set forth below.
2. Borrower’s exact legal name is set forth above. Borrower is a corporation existing under the laws of the State of Delaware.
3. Attached hereto arc true, correct and complete copies of Borrower’s Articles/Certificate of Incorporation (including
amendments), as filed with the Secretary of State of the state in which Borrower is incorporated as set forth above. Such Articles/Certificate of Incorporation have not been amended, annulled, rescinded, revoked or supplemented, and remain in full
force and effect as of the date hereof.
4. The following resolutions were duly and validly adopted by Borrower’s Board
of Directors at a duly held meeting of such directors (or pursuant to a unanimous written consent or other authorized corporate action). Such resolutions are in full force and effect as of the date hereof and have not been in any way modified,
repealed, rescinded, amended or revoked, and Silicon Valley Bank (“Bank”) may rely on them until Bank receives written notice of revocation from Borrower.
RESOLVED, that any one of the following officers or employees of Borrower, whose names, titles and signatures are below, may act on behalf of Borrower:
Authorized to Add or Remove Signatories
/s/ Ron Fior
/s/ Ira Cook
RESOLVED FURTHER, that any one of
the persons designated above with a checked box beside his or her name may, from time to time, add or remove any individuals to and from the above list of persons authorized to act on behalf of Borrower.
RESOLVED FURTHER, that such individuals may, on behalf of Borrower:
Borrow Money. Borrow money from Bank.
Execute Loan Documents. Execute any loan documents Bank requires.
Security. Grant Bank a security interest in any of Borrower’s assets.
Negotiate Items. Negotiate or discount
all drafts, trade acceptances, promissory notes, or other indebtedness in which Borrower has an interest and receive cash or otherwise use the proceeds.
Apply for Letters of Credit. Apply for letters of credit from Bank.
Enter Derivative Transactions. Execute spot or forward foreign exchange contracts, interest rate swap agreements, or other
Issue Warrants. Issue warrants for Borrower’s capital stock.
Further Acts. Designate other individuals to request advances, pay fees and costs and execute other documents or agreements
(including documents or agreement that waive Borrower’s right to a jury trial) they believe to be necessary to effect these resolutions.
RESOLVED FURTHER, that all acts authorized by the above resolutions and any prior acts relating thereto are ratified.
5. The persons listed above are Borrower’s officers or employees with their titles and signatures shown next to their names.
/s/ Ron Vaisbort
*** If the Secretary, Assistant Secretary or other certifying officer executing above is
designated by the resolutions set forth in paragraph 4 as one of the authorized signing officers, this Certificate must also be signed by a second authorized officer or director of Borrower.
Borrower, hereby certify as to paragraphs 1 through 5 above, as of the date set forth above.